Delhi District Court
Ram Singh Maini ( Deceased) vs Sh. Harjit Singh Maini on 23 August, 2016
IN THE COURT OF SH. POORAN CHAND, LD. ADJ-06, SOUTH-
EAST, SAKET COURT, NEW DELHI
CS No. 8251/16
Unique ID Case No. CNR DLSE01-000004-2001
Ram Singh Maini ( deceased)
now represented by his legal representatives
Sh. Paramjit Singh
R/o A-266, New Friends Colony
New Delhi
( substituted vide order dated 19.03.2005)
......Plaintiff
Versus
1.Sh. Harjit Singh Maini S/o Sh. Ram Singh Maini R/o A-266, ( First floor) New Friends Colony New Delhi.
2. Smt. Amrit Kaur D/o Sh. Ram Singh Maini R/o E-49, Bali Nagar, New Delhi ( substituted vide order dated 08.09.2004) .......Defendants Date of institution of case : 29.10.2001.
Final Arguments heard : 06.08.2016
Judgment reserved : 06.08.2016
Date of judgment pronounced : 23.08.2016.
Suit for Mandatory Injunction
J U D G M E N T
1. Vide this judgment, I shall decide the suit for mandatory injunction filed by the plaintiff against the defendant.
CS No 8251/16 1/ 15Ram Singh Maini Vs. Harjit Singh Maini Plantiff's Version
2. The brief facts of the case are that plaintiff Ram Singh Maini ( now deceased) filed the present suit for mandatory injunction. He was the owner of property bearing no. A-266, New Friends Colony, New Delhi which was alloted to him as sub-lessee being the member of New Friends House Building Co-operative Society Ltd being the lessee of the said plot of land. After the execution of Perpetual Lease Deed in his favour, he had raised a three storeyed building on the said plot of land. Later on, he got leasehold rights converted into free- hold.
3. It is averred that defendant Harjeet Singh Maini is son of the plaintiff. The plaintiff had allowed him to occupy the first floor of the aforesaid property ( hereinafter called as suit property) as licensee on account of near relationship. It is further averred that the conduct of the defendant became unworthy as a son. He began to tease his mother and sometimes used force against her. She died because of the said treatment met out to her by the defendant and his family. Even after the death of the wife of the plaintiff, he had a hostile attitude against the plaintiff.
4. Plaintiff served a legal notice dated 25.09.2001 upon the defendant terminating his licence and calling him to remove all his belongings from the suit property but defendant despite service of the said notice failed to comply with the said notice. On the other hand, he sent a false and frivolous reply dated 10.10.2001 to the said notice through Sh. S. P. Kalra, Advocate.
5. It is further averred that the defendant is under an obligation to vacate the premises and remove all his belongings from the suit CS No 8251/16 2/ 15 Ram Singh Maini Vs. Harjit Singh Maini property in dispute and give the possession of the premises in dispute to the plaintiff but of no avail. Hence, the present suit is filed with a prayer to pass a decree for mandatory injunction in favour of the plaintiff and against the defendant directing him to remove all his belongings from the suit property i.e first floor of property bearing no. A-266, New Friends Colony, New Delhi and to grant the possession of the premises in dispute to the plaintiff as shown in red in the site plan annexed with.
Defendant's Version
6. Summons for settlement of issues were served upon the defendant and he filed written statement thereby taking preliminary objections that the plaintiff has not approached the court with clean hands and has suppressed the material facts relating to the defendant's ownership of the suit property. It is also pleaded that the present suit by which the plaintiff seeks the relief of mandatory injunction to place him in possession of the suit property is in fact having a substance of suit for possession and the suit in the present form is not maintainable. It is further averred that the suit has not been properly valued for the purpose of court fee and jurisdiction. The plaintiff has shown no basis to determine the value of the suit at Rs. 1,05,000/-. The value of the suit property is around Rs. 55,00,000/- on which the court fees payable is ad-valorem while the plaintiff has stated to have paid court fee on a valuation of Rs. 1,05,000/- only. Further, this court has no pecuniary jurisdiction to try and decide the present suit since the value of the property, the possession whereof has been claimed by the plaintiff is Rs. 55,00,000/-.
7. In reply on merits, defendant has denied that he is a licensee of the suit property. The true facts are that his grand father namely Sardar Mehar Singh migrated to India from Mianwali which forms part of Pakistan and settled in Delhi. The defendant's grandfather received CS No 8251/16 3/ 15 Ram Singh Maini Vs. Harjit Singh Maini compensation from Govt of India in lieu of the ancestral properties left behind in Pakistan due to partition of the country and with those funds, he started running business of Bakery at 2212, 58, Naiwla, Karol Bagh, New Delhi. The plot in question i.e A-266, New Friends Colony, New Delhi was purchased by the plaintiff from out of the funds belonging to his grand father who died in Delhi in February 1973 and the said plot of land though purchased by plaintiff in his own name, yet the said plot of land constituted joint family property and the defendant had a definite share therein. Apart this, after the acquisition of the said plot by the plaintiff, the funds to the extent of Rs. 30,000/- for raising construction thereon were given by the defendant to the plaintiff on an express verbal understanding that the defendant would be entitled to 1/3rd share in the entire property proposed to be constructed as also the land underneath. It is further averred in the written statement that the defendant who had secured dealership of a Petrol Pump at Jail Road, Hari Nagar, New Delhi way back in 1970 had a substantial income therefrom. The defendant to ensure his 1/3rd share in the entire property gave Rs. 21,000/- to the plaintiff which he had received from his father in law on the eve of marriage in 1974/75. It is further averred that he did not insist the plaintiff for execution of any document at the time of giving money because of relationship between the plaintiff and the defendant being that of father and son. In fact, the defendant gave money to the plaintiff much in excess of the said sum of Rs. 30,000/- but he is not taking any account of the same since what was given expressly as a share towards the cost of construction to entitle him to 1/3rd share was Rs. 30,000/- only. It is further stated that he was living with the plaintiff even after his marriage and his younger brother on the ground floor on the said house for number of years with common mess. In 1983-84 when his younger brother was going to be married, the plaintiff in presence of defendant's mother orally partitioned the CS No 8251/16 4/ 15 Ram Singh Maini Vs. Harjit Singh Maini said property with the consent of the defendant and his younger brother. As a result thereof, the first floor of the said property fell into his share and since then he has been living separately with his wife and children in the first floor of the said property as rightful and exclusive owner thereof. It is further stated that defendant has carried out a number of improvements/alteration in the first floor alone and has spent a huge amount on the same on various occasions. Neither the plaintiff nor his brother ever objected to the same since the plaintiff knew that defendant was the exclusive and rightful owner in possession of the first floor of the suit property. Further, it is stated that defendant acquired the ownership rights in the said first floor of the suit property in the manner indicated above and assertion of the plaintiff that he is owner of the said property is false. He has further averred that the plaintiff converted the lease hold rights to free hold rights without his knowledge by taking advantage of the fact that the ownership rights in the first floor of the said property had not been mutated in favour of defendant in the records of DDA.
8. It is further averred that the defendant's relations with his mother were very cordial and he served his mother all through till her death. The last rites of his mother were performed by him. She died of brain tumor for which she was treated in Appollo Hospital. Defendant is shocked to know that the responsibility of death of his mother has been attributed and fastened on him. He has been in occupation of first floor of the said property since 1983 and as soon as his mother died, plaintiff sent a legal notice to him in September 2001. The allegation of teasing his mother or using force or hostility against her are preposterous and defamatory in character.
Replication:-
9. Plaintiff has also preferred to file the replication to the written statement of defendant and has denied the allegations made in the CS No 8251/16 5/ 15 Ram Singh Maini Vs. Harjit Singh Maini written statement and affirmed his own version made in the suit.
10. Vide order dated 09.12.2002, following issues are framed:-
1. Whether the present suit is not maintainable in the present form? (OPD)
2. Whether the present suit is not properly valued for the purpose of court fees and jurisdiction? (OPD)
3. Whether the plaintiff is entitled to mandatory injunction as claimed? (OPP)
4. Relief.
11. It is pertinent to mention that during the pendency of the suit, plaintiff Ram Singh Maini expired and vide order dated 19.03.2005, LRs of the plaintiff were brought on record and the second son of the plaintiff Sh. Paramjit Singh is impleaded as plaintiff being the LRs as the right to sue survives in the suit and Smt. Amrit Kaur, sister of plaintiff was arrayed as defendant no.2.
Plaintiff's Evidence
12. In order to prove his case, Sh. Paramjit Singh examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW1/A and the documents Ex. P-1 to P-8 and the affidavit of his father Mark PW1/DC and PW-2 Sh. M. S. Bisht. Vide order dated 18.10.2006, plaintiff evidence was closed and case was adjourned for defendant's evidence.
Defendant's Evidence
13. Defendant examined himself as DW-1. He tendered his affidavit Ex. DW1/A and the documents Ex. DW1/1 and Mark X and was partly cross-examined and case was further adjourned for cross- examination of DW-1. Thereafter, pursuant to order dated 31.03.2008 passed by Hon'ble Ms. Justice Hima Kohli in suit titled as Harjit Singh Maini Vs. Paramjit Singh Maini, present file was called by CS No 8251/16 6/ 15 Ram Singh Maini Vs. Harjit Singh Maini Hon'ble High Court.
14. During the pendency of the present suit, defendant Harjit Singh Maini has filed another suit for declaration/injunction/partition against the plaintiff herein in the Hon'ble High Court of Delhi. In the said suit, plaintiff herein moved an application U/s 10 of CPC for stay of further proceedings of the said suit till the disposal of the present suit and defendant( plaintiff in the said suit) also moved transfer petition to transfer the present matter to Hon'ble High Court.
15. Hon'ble High Court vide its order dated 31.03.2008, while rejecting the application of the plaintiff for stay of proceedings, allowed the transfer petition of the plaintiff ( defendant herein) and directed for consolidation of both the suits and further directed that both the suits be put on trial after framing of issues in the second suit filed before the Hon'ble High Court. Vide said order, Hon'ble High Court further directed that after framing issues in the second suit and defendant(plaintiff in the second suit) was directed to file consolidated affidavits for both the suits to which both the parties had no objection, hence, thereafter the evidence was recorded in the suit titled as Harjit Singh Maini Vs. Paramjit Singh Maini before Hon'ble High Court which is also to be read in the present suit.
16. In order to prove his defence in the present suit and the claim in the second suit, defendant Harjit Singh Maini examined himself as PW-1 and also examined Sh. M. K. Sehgal and Sh. Madan Lal as PW-2 and PW-3 respectively. It is pertinent to mention that in view of directions given by Hon'ble High Court vide order dated 31.03.2008, the record of the present case was called by the Hon'ble Registrar and was placed before Hon'ble High Court and vide order dated 23.05.2008, it was ordered that present suit be registered and be given a fresh CS No 8251/16 7/ 15 Ram Singh Maini Vs. Harjit Singh Maini number and tagged with the present suit before Hon'ble High court and issues were also framed vide said order in the second suit. Thereafter, defendant's( plaintiff in the second suit) evidence was recorded. It is also pertinent to mention that after framing of issues in the suit filed by defendant in the Hon'ble High Court, plaintiff did not lead any evidence and he adopted the same evidence recorded in the present suit.
Plaintiff's Arguments
17. Ld. counsel for the plaintiff has argued that in 2001, deceased father of the parties being the owner of the suit property had filed a suit for mandatory injunction (eviction/ejectment) against defendant herein inter alia seeking direction against the defendant to remove himself and belonging from first floor of the suit property. He has further argued that after the death of Sh. R. S. Maini, plaintiff herein substituted as plaintiff on the basis of registered will dated 07.09.2001 executed by Ram Singh Saini in his favour and the defendant as a counter blast interalia seeking declaration qua ownership with respect to first floor of the suit property and injunction and partition with regard to suit property has filed the suit in the year 2005. He has further argued that plaintiff duly proved execution of registered will dated 07.09.2001 as Ex. PW2/1 whereby suit property was bequeathed in favour of Paramjit Singh Maini. It is also proved that late R.S. Maini had also disinherited the defendant by way public notice published in newspaper as Ex. PW1/DA. He has further argued that plaintiff late Sh. Ram Singh Maini had duly established that he acquired the suit property and construction was raised from his own funds and for the said purpose, he borrowed fund from LIC which were used for raising construction. He further argued that plaintiff duly proved mortgage deed and charge created for the purpose of taking loan in which defendant stood as guarantor CS No 8251/16 8/ 15 Ram Singh Maini Vs. Harjit Singh Maini and said fact was also admitted by defendant during his cross- examination. Further, defendant also failed to prove that the suit property was purchased benami in the name of R. S. Maini in the year 1970 from the fund received as compensation by his father. He has also failed to prove that suit property was ever treated jointly and the same was jointly held by R S Maini for himself and on behalf of son. The defendant has also failed to prove that suit property was ever treated jointly and the same was jointly held by R. S. Maini for himself and on behalf of son. He has further denied the contention of the defendant that Sh. Ram Singh Maini being a government servant have no source of earning and or extra income and therefore was not capable of purchasing and to develop the suit property from own fund and in support of contention he heavily relied upon the affidavit/statement of account furnished by Ram Singh Maini to Indian Oil corporation. The plaintiff ( Paramjit Singh Maini) as well as Sh. Ram Singh Maini ( since deceased) denied the correctness of document, however, defendant failed to prove the document by summoning the record from IOC or by any other modes. He has further argued that in the cross-examination of defendant, he has admitted that he has no personal knowledge that his grandfather received any compensation after he migrated to India and he had failed to prove the same. He has further argued that no oral partition took place in the year 1983 and defendant has also failed to prove the same. Defendant has occupied the first floor of the suit property with consent of parent and plaintiff. The suit property was a self acquired property of Sh. Ram Singh Maini and he later bequeathed to plaintiff by virtue of registered will. The defendant has also failed to prove that he has made any contribution towards construction and improvement of the suit property and he was alloted petrol pump with the aid and help of father as money required for petrol pump was contributed by Sh. Ram Singh Maini. Therefore, he has prayed CS No 8251/16 9/ 15 Ram Singh Maini Vs. Harjit Singh Maini that the suit for mandatory injunction be decreed in favour of the plaintiff.
Defendant's Arguments
18. On the other hand, Ld. counsel for the defendant has argued that plaintiff actually has sought relief of possession and it is settled law that decree for possession cannot be passed in a suit for injunction simpliciter. For proving his contention, he relied upon the judgement titled as Anatual Sudhakar Vs. P Buchhi Reddy (2008) 4 SCC 594 wherein it was held that recovery of specific immovable property where the plaintiff's title is under cloud and he does not have possession, remedy is suit for declaration and possession. He has further argued that since the plaintiff actually claims possession of the 1st floor of the property bearing no. A-266, New Friends Colony, he was to value the suit for the purposes of court fee and jurisdiction as per the market value of the suit premises which the plaintiff has not done. He has also argued that as per case of the plaintiff, defendant was a licensee of the suit premises and there is no proof of license deed or licence fee. He has also relied upon the judgement titled as C. M. Beena Vs P. N. Ramachandra Rao (2004) 3 SCC 595 wherein it has been held by apex court that a grant under which the gurantee takes only the right to use the premises without being entitled to exclusive possession must operate as a licence and not otherwise. He has argued that none of the ingredients of license are fulfilled. Defendant Harjit Singh Maini is in exclusive possession of the suit premises since 1980 whereas suit for possession is filed in 2001 i.e after 21 years and same is hopelessly barred by time and hence, the plaintiff is not entitled to the relief of mandatory injunction. He has further argued that defendant has not produced the original will dated 07.09.2001 and even not led any cogent evidence for loss of original bill and not sought permission of the court to file the secondary evidence. He has relied upon the judgements CS No 8251/16 10/ 15 Ram Singh Maini Vs. Harjit Singh Maini Kattinokulla Murali Krishna Vs. Veeramalla Koteshwar Rao (2010) 1SCC 466, T Venkata Narayana Vs. Venkata Subbamma (1996) 4 SCC 457 and Benga Behera Vs. Brij Kishore Nanda (2007) 9 SCC 728 for proving his contentions. He argued that neither the issue of will was pleaded nor any issue was framed as regards the will and hence the examination of PW-2 M.S. Bisht was of no consequence. He has also placed his reliance upon the Indian Easements Act 1882 wherein the Apex Court in AIR 1976 SC 1813 Board of Revenue Vs. A M Ansari has held that where agreements, for short duration of 9- 10 months created no interest in the land but only allowed the gurantee of puck, carry away and appropriate the forest produce, without giving exclusive possession and control of the land, held the agreements had the characteristics of a license and a license may be revoked by the gurantor unless the licensee acting upon the license has executed a work of a permanent character and incurred expenses in the execution. He has argued that as per Indian Evidence Act 1872, the burden of proving the facts that suit premises was self acquired property of Sh. Ram Singh Maini, will executed by Sh. Ram Singh Maini in favour of Sh. Paramjit Singh Maini and the loss of will were upon the plaintiff which he had failed to prove.
19. After hearing the above argument on behalf of both the sides, perused the evidence and the record. My findings on issues are as follows:-
Issue no.1: Whether the present suit is not maintainable in the present form? (OPD)
20. The onus to prove this issue was upon the defendant. In order to prove his claim/defence, defendant Harjit Singh Maini examined himself as PW-1 besides other PWs namely Sh. M. K. Sehgal and Sh. Madan Lal as PW-2 and PW-3 respectively. At the strength of case CS No 8251/16 11/ 15 Ram Singh Maini Vs. Harjit Singh Maini titled as Anatual Sudhakar Vs. P Buchhi Reddy (2008) 4 SCC 594, defendant contended that plaintiff is seeking recovery of specific immovable property by way of present suit where the plaintiff's title is under cloud and he does not have possession, the only remedy for him is to file the suit for declaration and possession. On the other hand, the contention of the plaintiff is that by virtue of perpetual lease deed Ex. P-6, late Sh Ram Singh Maini was absolute owner of the property bearing no. A-266, New Friends Colony, New Delhi and original title deed is also proved on record. I do not agree with the contention raised by the defendant that title of the plaintiff is under cloud as plaintiff is the owner of suit property by virtue of registered document and he has also proved the entire chain of the documents on record. Case laws relied by Ld. Counsel for defendant though hold correct position of law, however above mentioned judgment is not applicable and distinguishable to the facts and circumstances of the present case. Hon'ble High Court in case titled as O. P. Aggarwal & Anr Vs. Akshay Lal & Ors RFA No. 127/04 decided on 15.03.2012 held that once documents being original document and registered documents are filed and proved on record, the onus of proof that such documents are not genuine documents, in fact shifts to the opposite party. It is further held that ownership of original owner cannot be disputed and same is strong proof of ownership of the suit property of the party proved by means of chain of the title document. Hence, in view of my above reasons, plaintiff was not required to seek declaration of the portion of the property in possession of defendant as plaintiff is rightful owner of the property and defendant was his licencee. Hence, issue no. 1 is decided in favour of the plaintiff and against the defendant. Issue no. 2: Whether the present suit is not properly valued for the purpose of court fees and jurisdiction? (OPD) CS No 8251/16 12/ 15 Ram Singh Maini Vs. Harjit Singh Maini
21. For the purpose of court fees, plaintiff valued his suit at Rs. 1,05,000/- and on which appropriate court fees has been paid. In the written statement, defendant has taken the preliminary objection stating that this court has no pecuniary jurisdiction to try the present suit since the value of the suit property, the possession whereof has been claimed is Rs. 55,00,000/-. The onus to prove this was again on the defendant but defendant did not lead any evidence to the effect that value of the suit property is Rs. 55,00,000/-. It is pertinent that defendant filed written statement in the present suit in July 2002 and thereafter filed other suit before Hon'ble High Court in May 2005 wherein plaintiff ( defendant herein) has valued his suit for the purpose of jurisdiction and court fees for Rs. 21,00,000/-. This fact in itself shows that plea taken by defendant in the present suit in his written statement that value of the suit property is about Rs. 55,00,000/- was mentioned without any basis/evidence. As no evidence has been led by the defendant to corroborate this plea, however, he himself has valued the suit property at Rs. 21,00,000/- in his own suit filed before Hon'ble High Court titled as Harjit Singh Maini Vs. Parmjit Singh Maini. Accordingly, this court takes the value of the suit of the defendant as the value of the suit property for the purpose of court fees. Hence, in view of my above reasoning, this issue is decided in favour of the plaintiff and against the defendant. However, plaintiff is required to pay the additional court fees.
Issue no. 3: Whether plaintiff is entitled for mandatory injunction as claimed?(OPP)
22. In view of my findings qua issues no. 4,5,6 and 7 in suit titled as Harjit Singh Maini Vs. Paramjit Singh Maini filed by defendant herein, plaintiff became the absolute owner of the suit property i.e A- 266, New Friends Colony, New Delhi on the basis of Will Ex. PW2/1 CS No 8251/16 13/ 15 Ram Singh Maini Vs. Harjit Singh Maini in favour of Sh. Paramjit Singh Maini by late Sh. Ram Singh Maini and vide legal notice dated 25.09.2001 Ex. P-1 served upon the defendant, licence of the defendant was terminated by revoking his licence and called upon him to restore the possession of the premises in dispute to the plaintiff. In view of findings qua issues no. 4,5,6 and 7 in suit titled as Harjit Singh Maini Vs. Paramjit Singh Maini, it is proved that the property in question was not a benami transaction and no oral partition took place in the year 1983 as claimed by the defendant. Further, defendant did not contribute any amount towards the completion and improvements of the suit premises and by virtue of Will Ex. PW2/1 Paramjit Singh Maini became the absolute owner. Moreover, even if, it is presumed for the sake of arguments that defendant has contributed funds for raising the construction on the building or has invested a huge amount for renovation of the area under his occupation does not ipso-facto confer any right/title/interest to him in the suit property. For the said purpose, defendant should have exhausted the appropriate remedy under the provision of law for the recovery of the said amount. Hence, defendant has no right/title/interst in the suit property as his licence was already terminated by way of legal notice Ex. P-1. Accordingly, issue no. 3 is also decided in favour of the plaintiff and against the defendant.
Relief:-
23. Plaintiff is entitled for decree of mandatory injunction against the defendant and defendant is directed to remove all his belongings from the suit property i.e first floor of property bearing no. A-266, New Friends Colony, New Delhi and to grant the possession of the premises in dispute to the plaintiff as shown in red in the site plan annexed with.CS No 8251/16 14/ 15
Ram Singh Maini Vs. Harjit Singh Maini
24. As the plaintiff has already filed the court fees for the value of suit property of Rs. 1,05,000/-. As this court has held while deciding the issue no. 2 that for the purpose of court fees, the value of the suit property is valued Rs. 21,00,000/-. Hence, the plaintiff is directed to file the deficient court fees on the additional value of Rs. 19,95,000/-.
The plaintiff is also entitled to cost of the suit. In view of the above directions, suit of the plaintiff is decreed in terms as above. Decree sheet be prepared accordingly after the payment of remaining court fees on the additional value of the suit property amounting to Rs. 19,95,000/-.
25. File be consigned to record room.
Announced in Open Court (Pooran Chand)
On this 23th day of August, 2016 ADJ-06 (South East)
Saket Courts, New Delhi.
CS No 8251/16 15/ 15
Ram Singh Maini Vs. Harjit Singh Maini